December 17 2018 finally saw the long-awaited introduction of fines for individual company directors should their firms make nuisance calls or send nuisance texts and other marketing messages.

For some time, the Information Commissioner’s Office (ICO) has had the power to impose fines of up to £500,000 on firms which breach the Privacy and Electronic Communications Regulations (PECR). A number of fines have been imposed for offences such as cold calling individuals who had registered with the Telephone Preference Service and sending nuisance texts to individuals who had not explicitly consented in advance to receiving them.

However, a number of firms, instead of paying the fine, decided to put themselves into voluntary liquidation in an attempt to avoid payment. The key individuals from that firm may then have commenced trading once again under a different name. The latest change is designed to stop the law being abused in this way.

Of the £17.8 million in fines handed out by the ICO between 2010 and April 2018, only £9.7 million was recovered.

Hence it is now possible for the ICO to issue a fine against a director of any company that breaches this law. Even if the firm itself is placed into liquidation, the director can still be pursued for the fine. The ICO says it will act against a senior officer of a firm if the breach “took place with the consent or connivance of the officer” or “was attributable to any neglect on the part of the officer”.

The ICO can now issue a fine of up to £500,000 against the firm, and up to a further £500,000 against one or more directors, effectively meaning that seven-figure punishments can now be imposed for breaches of PECR.

Perhaps the latest change in the law cannot have come soon enough, as communications watchdog Ofcom estimates that 3.9 billion nuisance calls and texts were received by UK consumers during 2017.

Digital minister Margot James MP said:

“There is now no hiding place for the small minority of rogue directors who have previously tried to escape justice.

“We are determined to stamp this menace out and this new law is the latest in a series of measures to rid society of the plague of nuisance calls.”

Andy Curry, head of the ICO’s nuisance call enforcement team, said:

“We welcome this amendment to the law, which will increase the tools we have to protect the public.

“It will mean we can recover the fine more easily and also make it much harder for unscrupulous operators to set up in business again.”

 

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